SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441 Hearing dates: 16 August 2021 Date of orders: 27 August 2021 Decision date: 27 August 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Plasser Australia Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Plasser Australia Pty Ltd to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Plasser Australia Pty Ltd to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – workers were engaged in oxy-propane cutting of waste solvent drums – top joint of the drum failed and explosive release caused the detachment of the drum lid – failure to undertake a risk assessment on the risks associated with the "de-heading" of waste drums – inadequate safe work procedures – training gaps Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 7, 19, 32 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Code of Conduct: Managing risks of hazardous chemicals in the workplace – July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Plasser Australia Pty Limited (Defendant) Representation: Counsel: M Cahill (Prosecutor) E James (Defendant)